After months of mounting tensions between President Donald Trump and social media companies, Twitter and Facebook finally decided this week that the president had crossed the line.
On Wednesday, after Trump incited a crowd of his supporters, thousands of them violently invaded the U.S. Capitol, where Congress was voting to certify the election results, in an insurrection attempt that left five dead.
Although Trump posted a video briefly denouncing the violence, he continued to use social media platforms to praise his supporters and once again repeat unmasked conspiracy theories about the election.
Twitter and Facebook, both with policies against inciting violence, undermining democratic processes and spreading electoral disinformation, decided that – given the impact the president’s comments were having and continue to have – they would no longer let him use their platforms.
Twitter has permanently suspended Trump’s personal account @realDonaldTrump, citing “the risk of further incitement to violence”. Facebook and Instagram suspended Trump “indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”
Read More: Google and Apple are banning Parler from their app stores for allowing violent content after an insurrection attempt that left 5 dead
A few hours after Twitter’s ban on Friday, Trump tried to circumvent it by sending a tweet from the official presidential account, @POTUS. He posted a series of tweets criticizing the social media company for “banning free speech” and targeting one of his favorite targets, Section 230. (Twitter removed tweets quickly.)
But Trump’s implication – that Twitter has somehow violated his First Amendment right to freedom of expression – is a complete misunderstanding of what the First Amendment says.
See why Twitter and Facebook, like other social media companies, have the right to ban Trump, and why Trump and other far-right politicians often exclude him in Section 230.
What is the First Amendment?
The First Amendment to the US Constitution says: “Congress will not make any laws respect the establishment of a religion, or prohibit its free exercise; or restricting freedom of expression, or the press; or the right of the people to meet peacefully and to petition the government for redress of complaints ” [emphasis added].
In other words, it prohibits the government from infringing on freedom of expression (with some limited exceptions).
What does this mean for social media companies?
Not much.
“The First Amendment is a restriction on government power. It does not apply to Twitter,” said Daphne Keller, a lawyer and Internet law expert who leads the platform regulation program at Stanford University’s Cyber Policy Center, adding : “Twitter is not a state actor.”
Why are Trump and his allies so angry then?
Trump, his allies and others who were hit with account suspensions, had warning labels applied to their posts or had their advertising revenue cut by companies like Facebook, Twitter and YouTube may disagree with the rules of these companies or the approach to enforce them – or they may just be angry that they can’t get their message out or make money from their audience or advertisers.
But, legally, there is very little they can do.
Section 230 of the Communications Decency Act of 1996 offers legal protections for “interactive computer services” – such as social media companies – that: 1) prevent you from being held responsible for the content posted by your users (with some limited exceptions), and 2) allows them to moderate the content on their sites in the way they see fit.
“Section 230 makes it relatively easy for platforms to go to court and win, saying ‘we have the right to apply whatever policies we want’,” said Keller. But even without Section 230, she said, Twitter would win if Trump sued “based on his own First Amendment right to set editorial policy on the platform”.
So why does Trump and his allies still want to get rid of Section 230?
Trump and many far-right politicians have repeatedly claimed (without evidence) that social media companies are systematically biased against them, and they believe that repealing or restricting Section 230 would allow them to use the government to deny Section 230 legal protections for platforms that are not “politically neutral”.
Ironically, this is exactly what the First Amendment prohibits, which legal experts quickly pointed out when Trump tried to use executive orders to enforce that past summer. (Even so, Trump loyalists at the Federal Communications Commission tried to implement it anyway.)
What would happen if they repealed Section 230?
Ignoring for a second that it is legal for social media companies to be “biased” when applying content rules, criticisms from right-wing politicians to Section 230 tend to ignore several important facts about who social media currently benefits – and who benefits. would benefit if they repealed the law.
First, the evidence has consistently shown that conservatives tend to enjoy some of the broadest reach and engagement on sites like Facebook, Twitter and YouTube – or, at least, conservatives have failed to produce evidence that their views are being silenced or that their reach is being strangled.
Second, if social media companies lost the legal protections offered by Section 230, they would be More, no less likely to remove objectionable content from their sites, because they (legitimately) fear being prosecuted.
The purge can very likely damage far-right accounts – something Facebook itself has implicitly acknowledged, according to reports by The Wall Street Journal and The Washington Post.
And increased legal liability can also make it more difficult for new competitors, as “alternative” social media sites Parler, Gab and MeWe – where Trump supporters met due to their negligent approaches to regulating content – get off the ground first of all .